Miami Erotic Museum uses fraudulent DMCA notice to censor Flickr

Thomas Hawk sez, "I was disappointed to have hundreds of my photos pulled down last week off of Flickr due to a fraudulently filed DMCA takedown notice by the World Erotic Art Museum in Miami. The museum submitted a sworn statement claiming copyright over 100% of the items in their collection, including items out of copyright, clearly transformative abstracts, and even works by unknown artists. While a museum might object to our posting images of their collection, abusing the DMCA is not the answer."

Regardless if this is a publicity stunt by the complainant, or whether or not their complaints are valid, people should learn not to trust Flickr/Yahoo to store their data. My Flickr pro account and Yahoo email were deleted without notice, recourse, appeal, or refund. DO NOT TRUST FLICKR OR YAHOO WITH YOUR DATA!!!

And they want $150,000 per infringement, for a minimum of $2,000,000–though I don’t see a single claim of copyright registration in their name in the document cited. Pretty ridiculous for a museum that **allows photography**.

Seems to me that their claim of common law copyright infringement is an implied admission that their DMCA takedown notice was fraudulent. Perhaps the whole lawsuit is a way to try to cover that up with a giant distraction?

I think a boycott of the museum is in order. Who would want to go to a museum that may sue you for **tresspass** and eight other counts if they decide post hoc that your photos are too good.

A poster at TH’s site opines that this ridiculous, fact-lite suit may have been filed because TH filed a DMCA counter notice, which would have reinstated the photos unless the museum filed suit. If that is the case, the suit will likely backfire since they don’t make any claims under the Copyright Act–since they likely have no copyright registrations in their name for the works on display.

You can still have copyright over a work even if it’s not registered. And you can still sue for infringement. Hence Count V — common law copyright infringement.

However, since the copyrights weren’t registered, statutory damages are not available. In other words, the plaintiff (the museum) will have to prove that they actually lost money because Thomas Hawk posted their copyrighted materials; that “up to $250,000″ on FBI warnings on DVDs is not available. (And, of course, they also must prove that they actually have copyright over the images, which, as Cory et al explain, is quite questionable.)

Of course, I’m not a lawyer and these statements should not be taken as legal advice.

“You can still have copyright over a work even if it’s not registered. And you can still sue for infringement. Hence Count V — common law copyright infringement.

However, since the copyrights weren’t registered, statutory damages are not available.

I think it is more complicated than that. Not only does it seem that the museum doesn’t have any registrations, it also seems that they don’t have any copyright assignments for the works in their collection, and hence no right to sue under Federal law. One of the things that “Common Law Copyright” can refer to is copyright claims under state law, laws that were mostly superseded by the Copyright Act. This makes it especially curious that the suit is demanding statutory damages of $150,000 per infringement since that figure comes from Federal law, not, AFIK, from common law. But IANAL either, so I’ll be interested to hear what knowledgeable folks have to say.

It’s possible, I suppose, as Cory et al. discuss, that they have copyright assignments for some of the works or that they’re claiming copyright over the arrangement/framing/labels/etc.

Obviously, claiming copyright over the labels/framing is dubious (as discussed) since it’s not very “creative.”

Copyright assignments, however, aren’t public record. It’s possible that they have been assigned the copyright on some of the works there. Unlikely — what kind of museum demands copyright over the works it exhibits? — but possible. And, a decent lawsuit would probably include the copyright assignments for any works that the museum itself did not create/commission but has copyright for.

So, while we’re obviously just speculating, I agree that the copyright claims are quite dubious.

The first thing I want to do right now is go find a torrent or visit websites that have photos of the works on display at this museum. Then I want to send a message to that museum and tell them that my friends and I will not be attending their exhibits, now or in the future, based on the way they treat other artists.

Since I happened to be nearby, I popped in and had a chat w/ a guy called David who’s card ID’s him as the “ArtDirector” of WEAM – he modified the front desk person’s assertion that they allow no photography whatsoever, “We’re not really that strict, but we had this incident recently where someone came in and photographed basically the entire collection on exhibit and put it on flickr on his account and then refused to take them down when we asked nicely.” That being said, I saw no signage about photography. It is a bit tacky to vacuum photograph an entire exhibit, but on the other hand I don’t get how WEAM doesn’t just see it as free publicity. Of course as someone above cynically suggests, maybe that’s exactly what they are capitalizing on.

Interesting that the Miami Erotic Museum seems to mistake owning an artwork with owning the copyright on that artwork. I somehow doubt the museum has written transfer of copyright for more than a few, if any, of the objects in its collection.

As soon as I start seeing words like “fraudulent” and “abuse” in relation to the actions of an organization which must certainly have a large legal department, I started thinking about ways in which the WEAM could have legitimately used the DMCA to achieve this result. I am not a lawyer, nor do I play one on TV, nor do I consider myself more informed on copyright issues than any other random BB commenter, so feel free to correct me on anything. The first legitimate reason I could think of to claim copyright on these pictures would be because they were taken of items on display at the WEAM. It seems possible to me that they are claiming copyright on the inside of their building, or on the physical items that they designed to display the works. Since we are talking about works of art by unknown/extremely dead artists, I would hope that someone at WEAM legal knows they don’t actually have the copyrights on the works, and while I don’t claim to know much if anything about copyright law it seems possible to me that they could claim that pictures of the inside of their building could be construed as copyrighted material.

If you don’t hold a copyright in the original work, you can’t create a copyright in a derivative work based on that work. So, because the Museum doesn’t hold the copyright in the original work, it can’t claim a copyright in the Display of the same works. However, the copyright holder of the work could possibly claim a copyright in the display as well under a derivative work theory.

For instance, a gentleman trying to get a screenwriter gig once wrote a screenplay treatment for what became Rocky 4. Sylvester Stallone liked the script and made Rocky 4 based on the script. He didn’t get the author’s permission because he claimed it was a derivative work based on the original Rocky movies. Stallone ultimately for the most part was successful in claiming such rights.

First of all, such a di minimis use (capturing a piece of picture frame) is squarely fair use. Second of all, picture frames, waiscotting, etc are not copyrightable subject matters. Third, even if they are, the copyright would vest with the carpenter, etc, unless they had some kind of assignment of rights.

I understand your three points, but since I seem to have your attention I will pose a hypothetical: The WEAM has an on-site carpenter-artist, and they decided to display his “Picture Frame in Oak, 2010″ with a Picasso in it. Is my idea still impossible/untenable legally?

What a coincidence seeing this place in the news. I never heard of this museum before my visit to South Beach 2 wks. ago, and passed by it on Washington St. (I wanted to pay a visit, but my wife balked!). Anyway, I shot this photo of the facade. Check it out before they pull a DMCA on it.http://www.flickr.com/photos/shutter-yid/5301916208/